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“The elections clause as a structural constraint on partisan gerrymandering of Congress”

That’s the title for the piece I was asked to contribute to the SCOTUSblog Symposium on the partisan gerrymandering cases. Here is the piece, and here is an excerpt:

There is yet another constitutional provision, not at issue in Gill, that even more naturally moves constitutional analysis away from individual rights to a focus on the statewide effects of partisan gerrymandering, at least when it comes to congressional districts. That is the elections clause of the Constitution, Article I, Section 4. The elections clause delegates power to state legislatures, in the first instance, to establish the “times, places and manner” of congressional elections.

Like the powers of Congress in Article I, the elections clause is a specifically enumerated power that the Constitution grants to states, initially, for specific and limited purposes. The Supreme Court has made clear that the states have no reserved or inherent powers over the regulation and design of congressional districts. Their power to design congressional districts stems only from this enumerated grant and cannot go beyond the scope of that grant.

. . . In several cases, the court has struck down state laws that regulate congressional elections as being beyond the implicit boundaries on state power under the elections clause. In the U.S. Term Limits Inc. v. Thornton case, for example, the court noted that, “the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional constraints.” This was part of the basis for the court’s holding that term limits for members of Congress are unconstitutional. Similarly, the court struck down state ballot-notation measures in Cook v. Gralike, relying on the fact that, as Justice Anthony Kennedy noted in concurrence, the “Elections Clause thus delegates but limited power over federal elections to the States.” The court concluded that ballot notation, which indicated whether a candidate had pledged to support term limits, was designed to “favor candidates” who took certain positions. This was beyond a state’s legitimate authority under the elections clause.

Because the Supreme Court has already held that states cannot use their power under the elections clause to “favor or disfavor a class of candidates,” the elections clause might be thought a natural home for statewide challenges to partisan gerrymandering of congressional districts. I filed an amicus brief in the 2006 case of League of United Latin American Citizens v. Perry, in which I made this argument on behalf of myself and my colleagues with election-law expertise, Sam Issacharoff and Burt Neuborne. Jamal Greene has an excellent student Note that develops the argument in much more detail. [Update: I forgot to mention in the original piece that Jessie Amunson also has a good student Note on the same subject].

So far, the elections clause has not been the focus of sustained attention in any of the Supreme Court’s partisan-gerrymandering decisions. But that is about to change. The three-judge federal court that struck down North Carolina’s 2016 congressional districting plan held that partisan gerrymanders of Congress do indeed violate the elections clause, as well as the First and 14th Amendments. That case is currently under submission to the Supreme Court, and it is likely to represent the court’s next major confrontation with defining the kind of constitutional injury that partisan gerrymandering entails.